Sabal Ltd. v. Deutsche Bank AG

209 F. Supp. 3d 907, 2016 U.S. Dist. LEXIS 126884, 2016 WL 5080385
CourtDistrict Court, W.D. Texas
DecidedSeptember 19, 2016
DocketNo. 5:16-CV-300-DAE
StatusPublished
Cited by25 cases

This text of 209 F. Supp. 3d 907 (Sabal Ltd. v. Deutsche Bank AG) is published on Counsel Stack Legal Research, covering District Court, W.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sabal Ltd. v. Deutsche Bank AG, 209 F. Supp. 3d 907, 2016 U.S. Dist. LEXIS 126884, 2016 WL 5080385 (W.D. Tex. 2016).

Opinion

ORDER GRANTING MOTION TO TRANSFER VENUE

DAVID ALAN EZRA, UNITED STATED DISTRICT JUDGE

Before the Court is a Motion to Transfer Venue or Dismiss the Amended Complaint filed by Defendant Deutsche Bank AG (“Defendant” or “Deutsche Bank”). (Dkt. # 9.) On September 15, 2016, the Court held a hearing on the motion: Stuart M. Riback of Wilk Auslander LLP and John A. Huddleston of Strasburger & Price, LLP appeared on behalf of Sabal Limited LP (“Plaintiff” or “Sabal”); David L. Goldberg of Katten Muchin Rosenman LLP appeared on behalf of Deutsche Bank. After careful consideration of the memoranda filed in support of and in opposition to the motion, as well as the arguments made at the hearing, the Court, for the reasons that follow, GRANTS the Motion to Transfer (Dkt. # 9).

[913]*913BACKGROUND

Sabal is a Texas limited partnership and private investment company based out of San Antonio, Texas, that manages a single family’s investments. (“Am. Compl.,” Dkt. #3 ¶¶ 3, 8.) Deutsche Bank is a German Aktiengesellschaft1 with its principal place of business in Frankfurt, Germany. (Id. ¶ 4.)

I. The Securities Account Agreement

On February 23, 2010, Sabal, Deutsche Bank Securities Inc.2 (“DBSI”), and Deutsche Bank—through its New York affiliate Deutsche Bank Trust Company of Americas—entered into a Securities Account and Control Agreement (“SACA”). (“SACA,” Dkt. #13-10, Ex. 9.) Through the SACA, Sabal established two accounts at DBSI: a primary account “used for trading and margin activities,” and a secondary account “used solely to hold financial assets as collateral” in favor of Deutsche Bank (collectively, “the Securities Accounts”). (Id. § 2.2.1.) The SACA required DBSI to honor all instructions from Sabal with respect to financial assets held in the primary account. (Id ¶ 2.4.1.) However, the SACA prohibited DBSI from honoring Sabal’s requests to trade, redeem, or transfer financial assets in the secondary account, and granted Deutsche Bank a first lien on the secondary account. (Id. §§ 2.2.2, 2.4.2.)

The SACA and Sabal’s Securities Accounts “shall be governed by, and construed in accordance with, the laws of the State of New York.” (Id. § 4.1.) The SACA also contains a forum-selection clause stating:

In any action or proceeding arising out of or relating to this Agreement, the parties hereto hereby irrevocably submit to the exclusive jurisdiction of the courts of the State of New York and the federal courts in New York City ... [Sabal] hereby irrevocably waives any objection [it] may now or hereafter have to the laying of venue in the aforesaid courts, and any claim that any of the aforesaid courts is an inconvenient forum ... [Sa-bal] further agrees that any action or proceeding by Sabal against [Deutsche Bank] in any respect to any matter arising out of, or in any way relating to, this Agreement or the obligations of [Sabal] hereunder shall be brought only in the State and County of New York.

(Id. § 4.2.) Section Five of the SACA pertains to “Conflict with Other Agreements” and states in relevant part:

In the event of any conflict between this Agreement (or any portion thereof) and any other agreement now existing or hereafter entered into, the terms of this Agreement shall prevail.

(Id. § 5.1.)

II. The Swap Agreement

On July 15, 2011, Deutsche Bank and Sabal entered into a swap agreement.' (“Confirmation,” Dkt. # 13-9, Ex. 8.) Under the terms of the swap, Deutsche Bank would pay Sabal a fixed rate of 4.65% on a notional $16 million every quarter from November 1, 2011, through August 1, 2021. (Id. at 2.) In exchange, Sabal would make payments to Deutsche Bank in two separate tranches. First, from August 1, 2011, through November 1, 2015,3 Sabal would [914]*914pay Deutsche Bank a fixed rate of 2.25% on a notional $16 million every quarter. (Id.) Second, starting November 1, 2015, through August 1, 2021, Sabal would pay Deutsche Bank a floating rate on a notional $16 million every quarter. (Id.) The floating rate was determined using a calculation tied to the price of Deutsche Bank’s PULSE USD Index, but subject to a 0.00% floor and an 8.50% ceiling.4 (Id at 2-4.) Deutsche Bank was contractually assigned the duty as “Calculation Agent,” who was responsible for calculating the floating rate each quarter. (Id. At 2, 4.)

Sabal and Deutsche Bank memorialized the swap agreement using four separate, industry standard, 'and integrated instruments. The four instruments are: (1) the International Swap Dealers Association (“ISDA”) Master Agreement (“Master Swap Agreement”); (2) the Schedule to the ISDA Master Swap Agreement (“Swap Schedule”); (3) the Credit Support Annex to the Swap Schedule (“CSA”); and (4) the trade confirmation (“Confirmation”) (collectively “Swap Documents”). (“Master Swap Agreement,” Dkt. # 13-6, Ex. 5; “Swap Schedule,” Dkt. # 13-7, Ex. 6; “CSA,” Dkt. # 13-8, Ex. 7; Confirmation.) The Swap Documents expressly provide that they “shall be governed by, and construed and enforced in accordance with, the laws of the State of New York.” (Master Swap Agreement § 13(a); Swap Schedule Part 4(h).) The Master Swap Agreement also contains a forum-selection clause stating in relevant part:

With respect to any suit, action or proceedings relating to this Agreement (“Proceedings”), each party irrevocably submits ... to the non-exclusive jurisdiction of the courts of the State of New York and the United States District Court located in the Borough of Manhattan in New York City, if this Agreement is expressed to be governed by the laws of the State of New York.

(Master Swap Agreement § 13(b)(i).) Further, the Master Swap Agreement ■ provides that “[njothing in this Agreement precludes either party from bringing Proceedings in any other jurisdiction.” (Id. § 13(b).) Finally, the Master Swap Agreement contains a merger clause stating that it “constitutes the entire agreement and understanding of the parties with respect to its subject matter and supersedes all oral communication and prior writings with respect thereto.” (Id. § 9(a).)

III. The Dispute

The present dispute arises out of two discrete actions allegedly taken by Deutsche Bank. First, Sabal alleges that at the inception of the swap, Deutsche Bank took an “Independent Amount” of $960,000 as collateral from Sabal’s accounts held at DBSI. (Am. Compl. ¶¶ 16-17.) The CSA expressly provides that the primary and secondary accounts—the accounts established by the SACA—are used to hold eligible collateral for the swap. (CSA § 13(g)(i); id. Ex. A.) However, Sabal contends that the Swap Documents do not provide Deutsche Bank authorization to take the “Independent Amount.” (Am. Compl. ¶ 19.) Further, Sabal alleges that Deutsche Bank wrongfully took more collateral by locking Sabal’s primary or secondary accounts at DBSI, preventing Sa-bal from accessing almost $4.5 million. (Id. ¶ 18.) Finally, Sabal alleges that Deutsche Bank fraudulently altered language in the original Confirmation after the parties executed the Swap Documents to give it authority to take an “Independent Amount” as collateral.

[915]*915The second dispute arose when it came time for Sabal to make payments to Deutsche Bank using the floating rate formula. (Id.

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209 F. Supp. 3d 907, 2016 U.S. Dist. LEXIS 126884, 2016 WL 5080385, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sabal-ltd-v-deutsche-bank-ag-txwd-2016.